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Sampling and the law

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Re: Sampling and the law

Postby Still Vibrations » Fri May 03, 2019 10:20 am

Eddy Deegan wrote:An obligatory related link: https://www.youtube.com/watch?v=5SaFTm2bcac

No specific wisdom in the above, but I commend it on its own merits and if you haven't watched it, enjoy.

You are wrong to write "no specific wisdom", that video is brilliant and is exactly what I have been saying in my posts.
Regarding the Zero-G release of the Amen break, I'm sure you can get round that as using the original would be prior art.
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Re: Sampling and the law

Postby blinddrew » Fri May 03, 2019 3:49 pm

Before I put any effort into another post, I have a simple question.
Are people willing to accept any point of view that says that theft is not the same as copyright infringement?
Because if not, there is no way of having a sensible debate about this subject.
They are different things in practice.
They are different things in consequence.
They are different things in law.

The legal and moral aspects of copyright are complex and nuanced, reducto ad absurdem arguments and conflation of different topics don't allow you to have a sensible discussion.

So where are we?
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Re: Sampling and the law

Postby Eddy Deegan » Fri May 03, 2019 4:37 pm

blinddrew wrote:Are people willing to accept any point of view that says that theft is not the same as copyright infringement?

There are similarities in some aspects and differences in others, but I don't perceive them as the same thing myself.
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Re: Sampling and the law

Postby The Red Bladder » Fri May 03, 2019 4:41 pm

One is subject to the law of tort and the other is subject to criminal law. Simples!
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Re: Sampling and the law

Postby CS70 » Fri May 03, 2019 4:46 pm

blinddrew wrote:Before I put any effort into another post, I have a simple question.
Are people willing to accept any point of view that says that theft is not the same as copyright infringement?

Er.. that is the debate, isn't it? :)

However, sure - they are technically different type of crimes. So what? :D
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Re: Sampling and the law

Postby Still Vibrations » Fri May 03, 2019 4:59 pm

blinddrew wrote:Before I put any effort into another post, I have a simple question.
Are people willing to accept any point of view that says that theft is not the same as copyright infringement?
Because if not, there is no way of having a sensible debate about this subject.
They are different things in practice.
They are different things in consequence.
They are different things in law.

The legal and moral aspects of copyright are complex and nuanced, reducto ad absurdem arguments and conflation of different topics don't allow you to have a sensible discussion.

So where are we?

That is the problem explained perfectly.
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Re: Sampling and the law

Postby blinddrew » Fri May 03, 2019 5:16 pm

Eddy Deegan wrote:There are similarities in some aspects and differences in others, but I don't perceive them as the same thing myself.
Excellent, we can continue from here. :)

The Red Bladder wrote:One is subject to the law of tort and the other is subject to criminal law. Simples!
That covers my third point but not the first two. It's a starting point though.

CS70 wrote:Er.. that is the debate, isn't it? :)
No, I don't think it is actually. See my three points above.

CS70 wrote:However, sure - they are technically different type of crimes. So what? :D
So different crimes have different impacts and therefore different punishments and different remedies, and maybe even solutions.

So let's talk about copyright then. And the first question is, of course, whose version of copyright are we talking about? The UK law? Where most of the regular commenters are based. The US law? That applies to most of the main hosting and distribution platforms? Wider EU guidelines that are yet to be implemented in national laws?

For simplicity I'd suggest we frame the debate around the US law as a) it's fairly clear on what it's for and why it exists; and b) it's the one that applies to how most of the population in the west interacts with copyrighted material, be that spotify, youtube, bandcamp, Apple music etc.

Are we happy with that general approach, subject to tangential discussions on local variations? :)
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Re: Sampling and the law

Postby Still Vibrations » Fri May 03, 2019 5:28 pm

blinddrew wrote:For simplicity I'd suggest we frame the debate around the US law as a) it's fairly clear on what it's for and why it exists; and b) it's the one that applies to how most of the population in the west interacts with copyrighted material, be that spotify, youtube, bandcamp, Apple music etc.

Are we happy with that general approach, subject to tangential discussions on local variations? :)

Yes, definitely.
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Re: Sampling and the law

Postby Watchmaker » Fri May 03, 2019 8:32 pm

Drew, Not to pour oil on the fire, I would simply place an assumption on the table: Theft and copyright share elements in that they both revolve around issues of ownership.

Also, an earlier a comment I'm too lazy to quote said, in effect, the courts don't make law, they merely interpret it. The nuance is that courts don't legislate, but they do "make" law. The noun is "precedent" and it forms the basis of the doctrine stare decisis.

I submit to the court's opinion: Copyright infringement is a sub category of theft, which is why people feel so strongly about it. The rest of the arguments can safely be made in any dialectic on law.
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Re: Sampling and the law

Postby blinddrew » Fri May 03, 2019 9:17 pm

Watchmaker wrote:Drew, Not to pour oil on the fire, I would simply place an assumption on the table: Theft and copyright share elements in that they both revolve around issues of ownership.
Agreed, but there are also elements they do not share. Hence it is a subtle and complex discussion.

Watchmaker wrote:Also, an earlier a comment I'm too lazy to quote said, in effect, the courts don't make law, they merely interpret it. The nuance is that courts don't legislate, but they do "make" law. The noun is "precedent" and it forms the basis of the doctrine stare decisis.
Indeed, to stick with the US copyright* example, Congress make the laws (theoretically in support of the constitution that they have all sworn to uphold), the courts interpret them.

Watchmaker wrote:I submit to the court's opinion: Copyright infringement is a sub category of theft, which is why people feel so strongly about it. The rest of the arguments can safely be made in any dialectic on law.
And here we disagree. Pick a dictionary, or a legal statute, and you will find the definition of theft to be something that talks about permanently depriving the legitimate owner of the their property.
Copyright infringement does not meet this description.
Ergo it is a different thing and should be treated differently.
Agree or no?

Edit: forgot to add my footnote.
* US copyright is also a good example to use because of the actions of the USTR.
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Re: Sampling and the law

Postby MOF » Fri May 03, 2019 9:41 pm

you will find the definition of theft to be something that talks about permanently depriving the legitimate owner of the their property.
Copyright infringement does not meet this description.
Ergo it is a different thing and should be treated differently.

Not directly, no, but the means by which the composer earns property has been stolen.
If you go into a shop and steal a CD you have done the same thing as downloading an album illegally.
Using someone’s recordings to incorporate into your recording, without payment, is analagous to stealing a CD.
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Re: Sampling and the law

Postby Still Vibrations » Fri May 03, 2019 9:44 pm

Watchmaker wrote:Also, an earlier a comment I'm too lazy to quote said, in effect, the courts don't make law, they merely interpret it. The nuance is that courts don't legislate, but they do "make" law. The noun is "precedent" and it forms the basis of the doctrine stare decisis.

In the U.S. precedents - stare decisis - can be overruled if the previous ruling is shown to be wrong or unworkable. I believe current copyright legislation is both wrong and will soon be unworkable.
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Re: Sampling and the law

Postby CS70 » Fri May 03, 2019 11:51 pm

blinddrew wrote:And here we disagree. Pick a dictionary, or a legal statute, and you will find the definition of theft to be something that talks about permanently depriving the legitimate owner of the their property.
Copyright infringement does not meet this description.

What in heaven you mean, "it doesn't deprive the legitimate owner etc"? :) If you have the copy right, you have the right of making copies of a work (for which you have presumably put down some investment). These copies can get for example sold, which brings you a direct economic benefit, or used in a way to bring you other types of benefit (credit, popularity, anything really that you can think of as a benefit) . If someone else makes these copies and sells them or otherwise claims them as his, these benefits will not, in part or total, get to you, but to them. Hence you are very much deprived - and quite permanently too because either the money or the other benefits ain't gonna get back to you anytime soon.

I am pretty certain you understand the logic. :D To deny it comes out as a little constructed and captious (unless you want to remove the entire concept of private property, and then we're talking!).

And I really don't see the point, because given that logic, the issues are a bit more downstream:

- are there certain circumstances in which the balance between such deprivation and the greater good is such that the greater good wins? Yes!
- is it sometimes difficult to define if something is a copy of something else? For sure!
- are there people which produce work but are completely disinterested in any benefit, economic or otherwise, which may come from it? Most likely!
- were there times (to say it with Still) where such damages were far less recognized? You bet.

Like any kind of property right, the copy right is not an absolute right (and thank goodness for that), but it's a pretty strong principle in our society. I have zero problems with someone who is starving and steals a piece of bread from someone who has more than he needs.. but I don't need to deny that theft it is.

This thread is about sampling. You don't see Hugh Jackman/Jean Valjean sing that he stole five seconds of Madonna's "Like a Virgin" - at least I haven't seen that movie :)
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Re: Sampling and the law

Postby blinddrew » Sat May 04, 2019 8:24 am

Head - desk - interface

One final attempt. Copyright infringement and theft are different things. They are both illegal and have some surface similarities, but unless you can move on from that we can't then sensibly talk about why copyright exists, how long it should exist for, and what exceptions should be in place.
These things are key to a sensible discussion about sampling.

Over to you.
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Re: Sampling and the law

Postby Sam Spoons » Sat May 04, 2019 8:59 am

Copyright infringement (sampling/plagiarism) does not meet the legal definition of theft because the owner of the work still owns and has the right to use the work. The consequential loss somebody else using it and, maybe, deriving money that, maybe, should have gone to the original composer) is just that, if somebody steals your car the criminal court is not concerned that you had to pay train fairs for a week but only that you had been deprived of your car (it may be considered as part of a compensation element, but that's a civil matter and not directly relevant WRT the criminal case).
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Re: Sampling and the law

Postby CS70 » Sat May 04, 2019 9:16 am

blinddrew wrote:Head - desk - interface

One final attempt. Copyright infringement and theft are different things. They are both illegal and have some surface similarities, but unless you can move on from that we can't then sensibly talk about why copyright exists, how long it should exist for, and what exceptions should be in place.
These things are key to a sensible discussion about sampling.

Over to you.

Thought we had already agreed they are? :D

Funny thing I guess this is theoretical for many people here but for the project I'm working right now these are burning questions, so I find myself to study stuff like the "Best Practices in Fair Use" at http://cmsimpact.org/code/documentary-f ... -fair-use/

That's why to me is important to avoid wishful thinking and actually see things how they are.. my neck's gonna soon be on the line and I really need to understand the matter. :)
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Re: Sampling and the law

Postby Still Vibrations » Sat May 04, 2019 9:42 am

CS70 - you are manipulating the discussion. You say copyright infringement and theft are equivalent and the discussing theft. That is not an argument and you are destroying the discussion.

Here are the two definitions of copyright from the Oxford English Dictionary:

1. The exclusive right given by law for a certain term of years to an author, composer, designer, etc. (or his assignee), to print, publish, and sell copies of his original work.1. The exclusive right given by law for a certain term of years to an author, composer, designer, etc. (or his assignee), to print, publish, and sell copies of his original work.

1. The exclusive right given by law for a certain term of years to an author, composer, designer, etc. (or his assignee), to print, publish, and sell copies of his original work.

2. attributive or adj. Protected by copyright; not allowed by law to be printed or copied except by permission of the author, designer, etc.

Here is the definition of theft:

a. The action of a thief; the felonious taking away of the personal goods of another; larceny; also, with a and plural, an instance of this.

You may wish they were the same thing but they are not.
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Re: Sampling and the law

Postby blinddrew » Sat May 04, 2019 11:00 am

Ok, so let's proceed on the assumption that they are different, because otherwise we'll go round in circles.

So, why do we have copyright? After all, for centuries we didn't and art was still created. Millions of people around the globe create art of all kinds on a daily basis without a thought to it. So what's it for?

Most modern copyright is based, to some extent, on the Statute of Anne, but this is quite a messy bit of legislation. Reading around the topic it's pretty obvious that this was a protectionist bit of law to prop up the existing publishing houses, but they realised that they couldn't jam something so obviously self-serving through Parliament so various nods to the public and limitations were included.

This is another good reason to look at the US constitution because, a) the definition is nice and clear, and b) we've got records* of the debates that ranged around the discussion.
From these we can see that the framers put a lot of thought into whether the US should adopt copyright of any kind, at all. The benefits** are not as clear cut as some might think.

So let's look at that text:
Article I Section 8. Clause 8 – Patent and Copyright Clause of the Constitution. [The Congress shall have power] “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”***

Really important bit here: the reason for this section is 'To promote the progress of science and the useful arts,' - that's the purpose, the second half of the phrase is the mechanism. That limited-time exclusive right, what we think of as copyrights and patents, is the mechanism that the framers chose in order to encourage people to create.

They could have chosen a number of other mechanisms, a flat rate payment from the government for every 'work' registered for example, or a tax on bookshops to be redistributed to schools for additional lessons.
But they chose to grant a limited-term monopoly to the person who registered the copyright or patent, to encourage them to create more stuff.
That last bit is kind of key.

Are we all happy with that? The purpose of that clause is to encourage people to create more science and art, and the mechanisms chosen were copyright and patents.


* Actually we've got record of a lot of the discussions around the Statute of Anne as well but they're not so clear.
** Patents rather than copyright, but the reason Hollywood is in Los Angeles and not New York is because the movie makers fled to the west coast to get away from Edison's patents. Would the industry have been as successful in a much more constrained environment? Who knows?
*** Originally this only covered maps, charts and books, but hopefully we can all agree that music is a good thing and should also be promoted?
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Re: Sampling and the law

Postby blinddrew » Sat May 04, 2019 11:01 am

CS70 wrote:Funny thing I guess this is theoretical for many people here but for the project I'm working right now these are burning questions, so I find myself to study stuff like the "Best Practices in Fair Use" at http://cmsimpact.org/code/documentary-f ... -fair-use/

That's why to me is important to avoid wishful thinking and actually see things how they are.. my neck's gonna soon be on the line and I really need to understand the matter. :)
We have two similar but parallel purposes here, you need to know how things are now, in legal black and white; I'm talking about why they are like that and whether that is the best way for them to be. :)
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Re: Sampling and the law

Postby blinddrew » Sat May 04, 2019 12:43 pm

Ok, so having established that creation of art is a good thing, and copyright is the mechanism that congress have the power to use to promote it, it's worth looking at an important but often forgotten part of the statute: the 'limited times' bit.
Why a limited time? After all, if copyright is a good thing, why not grant it in perpetuity?
Firstly, the framers recognised that art and science don't happen in a vacuum. We are inspired by, and build off, the works of others. Having a healthy public domain of work to build on is important, so they put a limit on things to ensure that public domain was continually refreshed with new material.
Secondly, we remember that copyright is just the mechanism, the purpose is the creation of new works. If copyright existed in perpetuity then a creator could have a single successful work and then retire off the royalties for the rest of their lives. There's no incentive to create more works in that scenario.
So they set the copyright duration at 14 years with the option to extend for an additional 14 years. This would, presumably, give a successful author or cartographer time to create another work whilst living off the proceeds of their first.
Thus the public domain is refreshed and the artist has the incentive to create more work.

There was, unsurprisingly, a lot of debate about the duration - as there was years before with the Statute of Anne. Lawmakers on both sides of the Atlantic were concerned that too short a period would not give creators time to complete another work, but too long a period would cause the public to lose respect for the law. After all, this law was taking away from the public something they could currently do, copy freely and at will, and replacing it with a government-decreed restriction.
It is useful to remember this balance of right and restriction. The west, by and large, governs and enforces laws by consent. We don't have our every move monitored and controlled by an apparatus of a police state because we agree to abide by the laws that govern us because we agree with their purpose.

So the framers and congress weighed the balance of public good and private good and decided that a fixed term restriction on usage was the best way of balancing the incentive to create and the furthering of the public domain.

Which was nice.

But quite limited, and times and cultures change.
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